(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
Ex post facto
Ex Post Facto is a Latin word which means ‘after the fact’ or ‘out of the aftermath’ and also known as retroactive laws.
Ex Post Facto laws are those laws which are enacted after an action is committed making such an act illegal although it was legal when committed. In the literal sense, it’s a law which criminalizes such conduct which was once legal. For Example- if ‘A’ committed theft on 17th Nov which was not an offence on that particular date. On 20th Nov. legislature enacted a law under which theft was an offence. Then whatever punishment was laid down by legislature ‘A’ was held liable as per Ex Post Facto laws, therefore ‘A’ had to bear the same punishment as per new laws even without knowing the consequence of his act when he was committing it.
Ex post facto law in India
As per Indian laws, Art. 20(1) of the Indian Constitution says ex post facto laws are prohibited i.e. no retrospective effect of accused criminal acts.
The aim is to maintain law and order; to protect intentional or illegal detention.
Accused can use this right during conviction or sentence but not a trial.
Protection is available to both citizens and foreigners for criminal cases.
Essential of ex post facto laws
There shall be a commission of offence and such offence was not legally recognised.
The 1st part of Article 20(1), in a literal sense, means the violation of any such law for which a person is convicted must be in existence when the act is committed. It follows therefore that a person cannot be convicted for an act, which was not an offence under the law in force when that act was committed.
Generally in Ex Post Facto laws, there is a retrospective effect, but as per Indian constitution, there is prohibition regarding retrospective operation. i.e. no punishment under retrospective operation.
The 2nd part of Article 20(1), in a literal sense, means punishment which was in force when the offence was committed will be applicable and there will be no retrospective operation. E.g. – A commit theft on 27th Aug 2020 imprisoned for 2 months. Later on 1st Sept. 2020 amendment was made which says the average punishment of theft is 3month in addition to monetary compensation that should be given to the victim. Now the judiciary can’t punish offenders of 27th Aug availing the extended punishment of 1st Sept because this art doesn’t hold retrospective operation.
Barai Rao Shiv Bahadur Singh & Another v. The State Of Vindhya Pradesh
It was provided by the honorable Supreme Court of India in the above mentioned case that if certain provision of any act passed by the legislature is reducing the punishment of an offense committed before passing of that act. Then in such cases there is no reason why the accused should not have the benefit of such reduced punishment.
The doctrine of Double jeopardy has been conceptualized in the Constitution of India under Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once. It has been enshrined as a part of the Fundamental Right by the fathers of our Constitution under Part III. When a person has been convicted for an offence by a competent court, the conviction serves a bar to any further criminal proceedings against him for the same offence. No one ought to be punished twice for one and the similar offence.
Ingredients applicable for double Jeopardy Rule –
A) The person must be accused of an offense. The word ‘offense’ as defined in general clauses Act means ‘any act or omission made punishable by law for the time being in force.
B) The preceding or prosecution must have taken place before a Court or Judicial Tribunal
C) The person must have been prosecuted and punished in the previous proceeding.
D) The offense must be the same as of before compulsorily for which he was prosecuted and punished
Kalawati v State of Himachal Pradesh[i]
In this case a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not applicable as there was no punishment for the offence at the earlier prosecution.
Monica Bedi v State of Andhra Pradesh[ii]
In this case the Apex Court ruled that a passport enrolled on fictitious name amounted to a double jeopardy as a Portuguese court too had earlier convicted her for owning forged passport
State of Haryana vs. Bhagwant Singh
In this case, Court held that the prohibition under Article 20 is not applicable to departmental proceedings.
Bhagwant Swarup vs. State of Maharashtra
In this case, Court held that the second prosecution, as well as punishment, should be regarding the same offense for which the person has been prosecuted and punished before and Article 20(2) is applicable. The same offence here means that the ingredients of the offense are same. It does not apply to different offences committed by the same act of that person.
Self incrimination has been defined as acts or declarations either as testimony at trial or prior to trial by which one implicates himself being involved in a crime. In India under Article 20(3), the provisions of doctrine of self- incrimination has been provided .In many state constitutions and laws, it prohibits the government from requiring any individual to be a witness against himself involuntarily or to furnish evidence against himself. The right to silence which includes a privilege against self-incrimination is closely related to the presumption of innocence. If it is the role of the prosecution to prove that an offence has been committed then flowing from that it should not be the responsibility of the accused person to facilitate the prosecution by being forced to speak.
The right to silence has various facets which includes –
that the burden is on the State or the prosecution to prove that the accused is guilty and is involved in crime.
till an accused is proved to be guilty, he is presumed to be innocent
that the right of the accused against self- incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself.
Balasaheb vs. State of Maharashtra
It was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case but he may refuse to answer those questions which tends to incriminate him.